B. CUSTOMER wishes to purchase CloudIT’s services in accordance with the terms set out herein.

NOW THEREFORE, in consideration of the mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Interpretation

“Confidential Information” means any information that a disclosing party treats in a confidential manner or that is marked “Confidential Information” prior to disclosure to the other party.

“CloudIT Data” means all information, whether in oral or written or electronic form, created by or in any way originating with CloudIT, and all information that is the output of any computer processing, or other electronic manipulation, of any information that was created by or in any way originating with CloudIT, in the course of using and configuring the Services provided under this Agreement.

“Customer” means the individuals including, but not limited to employees and authorized agents of the Customer, third party consultants, auditors and other independent contractors performing services for the Customer and any external users collaborating with the Customer and authorized by the Customer to access and use the Services provided by CloudIT under this Agreement.

“Customer Data” includes the Customer account credentials and information, and all records sent, received, or created by or for the Customer, including email content, headers, and attachments, and any protected information of the Customer.

“Data Compromise” means any actual or reasonably suspected unauthorized access to or acquisition of computerized data that compromises the security, confidentiality, or integrity of the data, or the ability of CloudIT to access the data.

“Documentation” means: (a) all materials published or otherwise made available to the Customer that relate to the functional, operational and/or performance capabilities of the Services; (b) all user, operator, system administration, technical, support and other manuals and all other materials published or otherwise made available to the Customer that describe the functional, operational and/or performance capabilities of the Services; and (c) any requests for information and/or requests for proposals issued by CloudIT and any document which purports to update or revise any of the foregoing.

“Downtime” means any period of time of any duration that the Services are not made available by CloudIT to the Customer for any reason, including scheduled Planned Maintenance or Enhancements.

“Emergency Incident” means conditions likely to cause severe Service degradation, as designated by CloudIT in its sole discretion including, but not limited to, events involving hardware or software failures or viruses/worms.

“Emergency Maintenance” means any corrective action intended to remedy conditions likely to cause severe Service degradation, as designated by CloudIT in its sole discretion including but not limited to actions intended to address hardware or software failures or viruses/worms.

“Enhancements” means any improvements, modifications, upgrades, updates, fixes, revisions and/or expansions to the Services that CloudIT may develop or acquire and incorporate into its standard version of the Services or which CloudIT has elected to make generally available to the Customer.

“Force Majeure Event” means that, except for the payment of Fees, neither party will be liable to the other for failure or delay in performing its obligations under the Agreement if such failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, interruption of or delay in telecommunications or third party services, unanticipated product development problems, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services (each, a “Force Majeure Event”).

“Intellectual Property Rights” includes without limitation all right, title, and interest in and to: (a) all patents and all filed, pending, or potential applications for patent, including any reissue, reexamination, division, continuation, or continuation‑in‑part applications throughout the world now or hereafter filed; (b) industrial designs; (c) trade secret rights and equivalent rights arising under the common law, provincial law and federal law; (d) copyrights, other literary property or authors rights, whether or not protected by copyright, under common law, provincial law and federal law; and (e) proprietary indicia, trademarks, trade names, symbols, logos and/or brand names under common law, provincial law and federal law.

“Planned Maintenance” means maintenance conducted on a pre-authorized planned schedule as between CloudIT and the Customer designed to avoid Emergency Maintenance.

“Project Manager” means the individual who shall serve as each party’s point of contact with the other party’s personnel as provided in this Service Level Agreement. The initial Project Managers may be changed by a party at any time upon written notice to the other party.

“Services” means CloudIT’s computing solutions, provided over the Internet to the Customer pursuant to this Service Level Agreement, that provide the functionality and/or produce the results described in the Documentation, including without limitation all Enhancements thereto and all interfaces.

“Service Level Agreement” means this Cloud Computing Service Level Agreement between CloudIT and the Customer inclusive of all schedules, exhibits, attachments, addenda and other documents incorporated by reference.

1. Service Levels

1.1 The following Service Levels apply to CloudIT IaaS (each Service Level and the terms and conditions that apply are described in more detail below):

(a) Network Uptime Target – 99.99% Network Uptime Target;

(b) Server Uptime Target – 99.99% Server Uptime Target;

(c) Support Response Time Target – 30 minute Support Response Time Target for Emergency Incidents; and

1.2 Actual performance against the above Service Levels will be measured using CloudIT’s then-current monitoring tool as implemented by CloudIT (the “Monitoring Tool”).

(b) Server Uptime Target. For CloudIT IaaS deployments in Canada, CloudIT intends to provide 99.99% availability of Client’s Cloud Servers. This Service Level only covers unavailability of a Cloud Server due to the hardware and hypervisor layers delivering individual Cloud Servers. A Cloud Server will be deemed “available” for purposes of this Service Level if the virtualization hardware and hypervisor layers delivering individual Cloud Servers are available and responding to the Monitoring Tool.

For Emergency category issues, CUSTOMER must create a ticket for which a tracking number will automatically be provided and the Project Manager will review the support request within the timeframe listed above. If CUSTOMER does not receive a response within 15 minutes, CUSTOMER may escalate to Option 2 by calling 1-855-200-0320. CloudIT may reclassify any ticket “Miss-classified” as falling into one of the Emergency categories listed above, and such ticket will not qualify for emergency treatment. CloudIT will exercise reasonable efforts to inform CUSTOMER in advance before interrupting the Service for Emergency Maintenance, but such notice is not guaranteed and failure thereof does not constitute a material breach of this SLA.

2. Service Level Credits

2.1 Definitions.

“Downtime” means, with respect to the “Network Uptime Target” and “Server Uptime Target” Service Levels, the period of time during which, as applicable:

(a) CloudIT Network is not available (as described in Section 1.3(a) above); or

(b) a Cloud Server is not available (as described in Section 1.3(b) above).

“Duration” during a particular calendar month means the total duration in minutes of the Downtime, Response Delay or Latency Degradation (as applicable) in such calendar month, calculated in accordance with this Section 2.

“Latency Degradation” means the number of minutes for which the transfer of data packets from one Cloud Server to another Cloud Server within the same Cloud Network is equal to or greater than one millisecond (1ms).

“Response Delay” means, for each Emergency Incident, the number of minutes by which the Response Time for such Emergency Incident exceeds thirty (30) minutes.

“Response Time” means the number of minutes that elapse between the time Client properly reports an Emergency Incident pursuant to part 1.3(c) above, and the time CloudIT support personnel contact Client regarding such Emergency Incident.

“Service Level Failure” means, for a particular Service Level during a particular calendar month, a failure by CloudIT to meet such Service Level during such calendar month (excluding any failure comprising or caused by an Excusing Event).

“Service Level Credit Percentage” means, for a particular Service Level Failure, the corresponding percentage set forth in the “Service Level Credit Percentage” column of the applicable table in Sections 2.4 and 2.5 below. Generally.

2.2Incident Reports

CloudIT will provide the Customer with an Incident Report via [email protected] within twenty-four hours of an incident for incidents resulting in greater than thirty minutes of Downtime. The Incident Report will include: incident date, duration, issue, details of the problem and details of the resolution.

2.3 Calculation

(a) For the “Network Uptime Target,” “Support Response Time Target” and “Latency Target” Service Levels, where there has been a Service Level Failure during a particular calendar month and where Client is entitled to a Service Level Credit hereunder, the total Service Level Credit will equal:

(i) the Service Level Credit Percentage corresponding to the Duration of such Service Level Failure, as set forth in the applicable table below, multiplied by

(ii) Client’s total Usage for such calendar month for the particular Location in which the Service Level Failure occurred.

For the avoidance of doubt, the calculation of such Service Level Credit will not include any other fees, costs or charges incurred or payable by Client, including Fees for other Locations within the applicable Geography in which the Service Level Failure(s) occurred or Fees for other Geographies.

(b) For the “Server Uptime Target,” where there has been a Service Level Failure during a particular calendar month and where Client is entitled to a Service Level Credit hereunder, the total Service Level Credit will equal:

(i) the Service Level Credit Percentage corresponding to the Duration of such Service Level Failure, as set forth in the applicable table below; multiplied by

(ii) Client’s total Usage for such calendar month that is attributable to the particular Cloud Server(s) with respect to which the Downtime occurred, as calculated by CloudIT based on applicable usage reports.

For the avoidance of doubt, the calculation of such Service Level Credit will not include any other fees, costs or charges incurred or payable by Client, including Fees for other Locations within the applicable Geography in which the Service Level Failure(s) occurred, Fees for other Geographies, or Fees for the particular Location that are not attributable to the particular Cloud Server(s) with respect to which the Service Level Failure occurred.

(c) If a single event or set of related events results in more than one Service Level Failure, Client will be entitled to receive no more than one (1) Service Level Credit corresponding to such event(s). Without limiting the foregoing, for any Downtime for which Client is entitled to receive Service Level Credits, Client will not be eligible for Service Level Credits for Latency Degradation during or related to such Downtime and no such Latency Degradation will count toward the Duration. Client must have been actively using CloudIT IaaS during a given Service Level Failure to be eligible for a Service Level Credit for that Service Level Failure.

(d) Notwithstanding anything to the contrary herein, at no time will the total cumulative Service Level Credits payable for all Service Level Failures that occurred during a particular calendar month in a particular Location exceed twenty five percent (25%) of Client’s Usage for such calendar month in such Location.

(e) Service Level Credits are Client’s sole and exclusive remedy and CloudIT’s sole and exclusive liability with respect to CloudIT’s failure to meet the Service Levels, and such failure will not be deemed to be a breach of the Terms or Client’s agreement with CloudIT.

(f) For the avoidance of doubt, all Service Level Credits will be calculated solely as set forth in this Section 2.2 based on the tables set forth in Sections 2.4 and 2.5 below (which have been based on a standardized calendar month for ease of calculation), in lieu of any uptime, availability, latency or response time target values or percentages set forth in Section 1 above.

2.4 Service Level Credit Percentages – Canada

Total Duration of Downtime for “Server Uptime Target” Service Level in the applicable calendar month for a particular Location Service Level Credit Percentage

0 – 4 minutes 0%

4 minutes – 60 minutes 2%

61 minutes – 120 minutes 5%

121 minutes – 240 minutes 10%

241 minutes – 360 minutes 15%

361 minutes – 480 minutes 20%

481 minutes or more 25%

Total Duration of Downtime for “Network Uptime Target” Service Level in the applicable calendar month for a particular Location Service Level Credit Percentage

0 – 4 minutes 0%

4 minutes – 60 minutes 2%

61 minutes – 120 minutes 5%

121 minutes – 240 minutes 10%

241 minutes – 360 minutes 15%

361 minutes – 480 minutes 20%

481 minutes or more 25%

Total Duration of Latency Degradation in the applicable calendar month for a particular Location Service Level Credit Percentage

0 – 40 minutes 0%

41 minutes – 60 minutes 1%

61 minutes – 120 minutes 2%

121 minutes – 240 minutes 5%

241 minutes or more 10%

Total Duration of Response Delay in the applicable calendar month for a particular Location Service Level Credit Percentage

Less than 1 minute 0%

1 – 30 minutes 2%

31 minutes or more 5%

2.5 Service Level Credits are calculated on a calendar monthly basis, and all Duration measurements are reset at the beginning of each calendar month (i.e., Durations do not “roll over” to subsequent months). The Monitoring Tool will be the official source for determining whether a Service Level Failure has occurred and for measuring all Service Level Failures and Durations.

Service Level Credit Redemption.

2.6 The process for redeeming Service Level Credits for application towards Fees payable is described in Section 12 of the Terms.

3. Excusing Events

3.1 Notwithstanding anything to the contrary herein or in the Terms, no Excusing Event, and no period of failure, delay, downtime, unavailability, latency, service degradation, response delay or similar event or occurrence that is caused by or related to an Excusing Event, will constitute Downtime, Response Delay or Latency Degradation, count against CloudIT’s performance against any Service Level or constitute a Service Level Failure. For purposes of these CloudIT IaaS Service Level Terms, “Excusing Event” means any of the following:

(a) Client’s act or omission or an act or omission of a third party for which Client is responsible, including failure to supply accurate, complete, and timely information when requested;

(b) A Force Majeure Event (as defined herein and in Section 16.10 of the Terms);

(c) Routine, planned, or emergency maintenance of the Services (as described in Section 7.2 of the Terms), or any other scheduled downtime agreed to by the parties;

(d) Defects in Third Party Software or CloudIT’s loss of license rights or restrictions imposed by third party licensors with respect to Third Party Software;

(e) Unavailability of necessary technology or other resources on commercially reasonable terms;

(f) Any operating system, database, application or other code or materials not provided by CloudIT, including configuration issues in connection with the foregoing;

(g) Any act or omission of a third party or that is not caused by CloudIT (for example, hacking, denial of service attacks and the introduction of viruses), provided that CloudIT uses reasonable efforts to maintain current versions of Software patches;

(h) Any IT or technical support services provided by CloudIT to Client for third-party software or hardware; and

(i) If CloudIT is providing Application Operations to Client:

(i) Modifications to hardware, system applications or application code configuration, or code not authorized by CloudIT. Changes or modifications to code that contributed to downtime.

(ii) Unavailability of Customer’s System due to Customer programming, modifications to OS, content, development, staging and/or testing period(s) or acts or omissions of Customer which are not performed in accordance with CloudIT’s standard change control processes.

(iii) If a Customer is using the Microsoft BizSpark products, CloudIT will support such product to the best of its ability, but per the program specifications, Microsoft will not support the product, so failure of such product will not be eligible for the SLA.

(iv) Unavailability of Customer System caused by failures of third party systems or services that are not under CloudIT’s control. Customer must be current on all outstanding invoices (as defined in the Terms of Service) to be eligible for the credits referenced in this SLA. No credits will be extended if Customer is delinquent in its payment of outstanding invoices.

4. Confidentiality

Each party acknowledges that certain information acquired from the other is of a special and unique character and constitutes Confidential Information.

The receiving party agrees to exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own similar Confidential Information and not to directly or indirectly provide, disclose, copy, distribute, republish or otherwise allow any third party to have access to any Confidential Information without prior written permission from the disclosing party.

As exceptions to the above restrictions: (a) either party may disclose Confidential Information to its employees and authorized agents who have a need to know; (b) either party may disclose Confidential Information if so required to perform any obligations under this Service Level Agreement; and (c) either party may disclose Confidential Information if so required by law including court order or subpoena.

Nothing in this Service Level Agreement shall in any way limit the ability of CloudIT to comply with any laws or legal process concerning disclosures by public entities. CloudIT acknowledges that any responses, materials, correspondence, documents or other information provided to CloudIT are subject to applicable federal and provincial law.

5. Service Fees

Service fees that shall be paid by the Customer to the Corporation on a monthly basis are set forth on Schedule A.

The Corporation shall provide the Customer with an invoice for the Services on a monthly basis and the invoice shall itemize, as applicable:

invoice number;

name, address, phone number;

description of Services;

all applicable taxes;

other applicable charges; and

total invoice price.

6. General

Severability

6.1 If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by a court or tribunal of competent jurisdiction, then:

(a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and

(b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and be deemed to have been amended without further action by the parties to the extent necessary to make such provision valid and enforceable.

Governing Law

6.2 This Agreement shall be governed exclusively by the laws of the Province of Ontario and the laws of Canada applicable therein. Each party irrevocably submits to the exclusive jurisdiction of the courts of Ontario.

Notices

6.3 Any notice, request, demand or other communication required or permitted hereunder will:

(a) Be in writing;

(b) Reference this Agreement and the applicable Order; and

(c) be directed to the recipient’s address or email address (or facsimile number if applicable) specified in the applicable Order by prepaid registered post, hand delivery, or facsimile, and will be deemed to be properly given when received. In addition, CloudIT may provide general notices related to the Services (including updates to these Terms, the Service Descriptions and the Service Level Terms) via www.coulditcanada.com.

Assignment

6.4 Neither party may assign, delegate or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that:

(a) CloudIT may assign this Agreement without the prior written consent of Client to an affiliate or in connection with a merger, consolidation, or sale of all or a portion of CloudIT’s assets or business; and

(b) CloudIT may have any of the Services performed on its behalf by its affiliates or other third parties.

6.5 Subject to the foregoing, the rights and liabilities of the parties hereto are binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment, delegation or other transfer except in accordance with this Section will be null and void.

Dispute Resolution.

6.6 In the event of any dispute between the parties concerning interpretations or enforcement of this Agreement, except for requests for injunctive or other equitable relief, the parties agree to first attempt informal dispute resolution by selecting a joint resolution committee consisting of up to two (2) representatives from each party (the “Committee”) to meet and attempt to resolve the dispute within thirty (30) days from the date that notice of demand for such dispute resolution is made pursuant to part 6.3 above. The Committee will determine its own procedures for the resolution of the dispute, and any decision of the Committee will be binding on the parties. If the Committee process does not result in resolution of the dispute, each Party then such dispute shall be referred to arbitration pursuant to the provisions of the Arbitrations Act of Ontario, as amended. The arbitration shall be conducted by a single arbitrator. The arbitrator shall fix the time and place for the purpose of hearing such evidence and representations of the parties. The arbitrator shall, after hearing any evidence and representations that the parties may submit, make their decision and reduce the same to writing and deliver one copy to each of the parties. The decision of the arbitrator shall be the final determination of the issues and the decision shall be binding upon the parties in respect of procedure and the conduct of the parties during the proceedings. The costs of the arbitration shall be borne by the parties as may be specified in the final determination of the arbitrator. Neither party will commence legal proceedings unless the parties have undertaken the process set out in this Section, and those processes have failed to resolve the dispute.

Right to Reference

6.7 Unless Client advises CloudIT otherwise in writing, Client consents to CloudIT using its name in any of CloudIT’s marketing, sales materials, press releases, public announcements and case studies.

Waiver

6.8 Any waiver by either party of a breach of or a default under any provision of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

Feedback

6.9 If Client provides suggestions for changes or improvements or other feedback to CloudIT about the Services or any of CloudIT’s other products or services, CloudIT may use such suggestions and feedback for any purpose without obligation or payment of any consideration to Client.

Force Majeure

6.10 Except for the payment of Fees, neither party will be liable to the other for failure or delay in performing its obligations under the Agreement if such failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, interruption of or delay in telecommunications or third party services, unanticipated product development problems, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services (each, a “Force Majeure Event”).

Relationship of the Parties

6.11 Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.

No Third Party Beneficiaries

6.12 Nothing in this Agreement, express or implied, is intended to confer, nor will anything herein confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.

Entire Agreement

6.13 This Agreement, including any applicable Orders and Third Party Software Terms, the AUP and any applicable Service Descriptions, Privacy Policies, and Terms of Service constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement, and all past courses of dealing and industry custom. Except as otherwise provided herein with respect to updating of certain terms by CloudIT, no modifications, additions, or amendments to this Agreement will be effective unless set forth in a writing referencing this Agreement and signed by a duly authorized representative of each Party. If there is any conflict or inconsistency between these Terms and any Order, then:

(a) the Order will take precedence and will resolve such conflict or inconsistency solely with respect to the specific variable terms included in the Order concerning pricing, payment, term, termination, or specific Services ordered; and

(b) these Terms will take precedence with respect to all other matters.

Interpretation

6.14 For purposes of interpreting this Agreement:

(a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular;

(b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph;

(c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”;

(e) the references herein to the parties will refer to their permitted successors and assigns;

(f) all headings are inserted for reference purposes only and do not affect the interpretation of the Agreement; and

(g) unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as it may be from time-to-time amended.

No Presumptions

6.15 In the event an ambiguity or question of intent or interpretation arises, these Terms will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of the authorship of any of the provisions of this Agreement. Client waives any claims or defences regarding the validity or enforceability of this Agreement arising from any electronic submission or presentation of the Agreement to Client.